ABA Journal just released an article on Adventure Racing/Extreme Sports and the respective liability issues here. The article also includes a link to 7 extreme sports events that have resulted in an injury and then ended up in Court. With a great expansion in the number of adventure races, such as Tough Mudder, Warrior Dash, and the more extreme and longer Spartan Death Race, whose goals are to provide a competitive race which includes a number of physical, mental, and pain tolerance obstacles and challenges throughout, there has been a corresponding increase in injuries and the occasional unfortunate death. In addition to the increase in these challenge type races throughout the world, there has been a similar rise in general adventure, recreational, and extreme sports and activities, businesses and outfitters in key hotspots around the country.
The question is, are organizers and outfitters susceptible to damages for injuries participants incur and, if so, how to limit such claims and liability? The general idea is that an adventure activity or outfitter is protected via a liability waiver/assumption of risk type contract document each participant signs upon signing up for the event or prior to the start. However, the applicability and use of liability waivers has come under increased scrutiny and court interpretation, around the country, in recent years because of the increase of activities.
The central issue the ABA Journal Article addresses, is if liability waiver/assumption of risk contracts are being properly drafted and used by these extreme sport racing event companies? What a personal injury or wrongful death lawsuit emanating from such an activity usually comes down to is the language in the Liability Waiver/Assumption of Risks Contracts – primarily does the waiver adequately inform and warn participants of the activities and obstacles, related risks, and needed abilities involved? An additional question may be, if warning the participants that there is a risk of significant injury or death provides enough of a warning for those extreme injuries, or if there needs to be more description as to the type of activities in which the participants will be engaged? This appears to be a problem more present with these “adventure races”, versus other outdoor recreational and adventure activities and outfitters, where the organizers want to challenge racers with a range of unknown types of obstacles to add an air of extreme novelty and unique challenge to the event, which they see as one of the greatest purposes of such races.
The general rule is that a client or participant needs to be adequately informed about the activities and risks in which they will be engaged and then, by signing, agree that they are aware of those activities and risks, believe they are capable of engaging in them, and waive all liability of the company producing or managing the activity. Most outdoor recreation and adventure clients and outfitters are able to clearly outline the type of activity the clientele will be engaged in and the risks and efforts involved, but these adventure races will need to find a balance between providing excitement and surprise, while properly informing participants of the challenges and dangers.
As always, it is important for all recreational and adventure businesses to take proper steps to not only fully inform their clientele of the activities and risks, but also to make sure employees are properly trained for and executing their roles, the infrastructure in place is prepared for any expected problems that may arise, including injuries to clientele or employees, and that the business structure and documentation is properly maintained to limit liability as intended.
Forrest P. Merithew, Attorney at Law, has written several previous articles on negligence defense and other liability limitation actions recreational and adventure businesses can take to protect not only their business and clients, but also their personal assets. Forrest Merithew is an active individual, regularly involved in recreational and adventure activities and sports, including obstacle courses and adventure races, and his firm performs a wide range of recreational and gear representation and defense services, including, but not limited to, business development and consulting; liability analysis and risk management; construction, environmental, and water regulatory consulting, development services and litigation; insurance coverage and insurance defense; and personal injury or wrongful death litigation. Forrest is licensed in North Carolina and California, and is available to consult with businesses, outfitters and non-profits involved in outdoor recreation, adventure, and other practice areas of personal and professional interest around the country.